Cindy Thompson, on February 22, 1984, was found
slashed and bludgeoned to death in her home in Pontiac, Michigan. The
police suspected that Thompson had been murdered by Carol Ege. Both
women had been dating the same man who had impregnated the victim.
Investigators suspected that the motive was jealous rage. Two men who
knew the suspect said she had offered them $350 to have Thompson
killed. The blunt force wounds on Thompson’s head were consistent with
a ball peen hammer found in a box in Ege’s possession. There was no
forensic evidence, however, linking that tool to the murder scene.

Carol Ege was not arrested until 1993 after
forensic odontologist Dr. Allan Warnick identified a bite mark on
Thompson’s face as having been made by Ege. At the trial, Dr. Warnick
testified there was a 3.5 million to one probability that the crime
scene bite mark was made by the defendant’s dentition. He said only
one person in the Detroit area could have made the impression that
matched Ege’s front teeth. Due to the passage of time since the
murder, Dr. Warnick didn’t examine the body itself. He mad his bite
mark identification by looking at autopsy photographs.

Ege’s defense team put on two expert witnesses—a
pathology professor from Wayne State University and a dentist/MD. The
pathology professor identified the mark on the victim’s face as a
bruise-like discoloration caused by post-mortem lividity (liver
mortis). The dentist/MD didn’t think the bruise had been made by
teeth, but if they had, the pattern did not match the defendant’s
dentition. Notwithstanding this defense testimony and the lack of
other physical evidence connecting the defendant to the murder scene,
the jury found Ege guilty of first-degree murder.

In 2005 a federal district judge set aside Ege’s
conviction on the grounds that bite mark identification was not
reliable evidence. A federal appeals court affirmed this decision. In
October 2007, Ege was retried without Dr. Warnick’s bite mark
testimony. The jury, despite the lack of physical evidence, convicted
Ege of first-degree murder. It took them less than five hours to reach
their verdict. On November 20, 2007 an Oakland County Circuit Court
Judge sentenced Carol Ege to life in prison with no possibility of
parole. “I did not commit this crime,” Ege said after receiving the
sentence.

JimFisher.edinboro.edu

Second conviction in 1984 slaying

First murder case had been dismissed after bite
expert was discredited

SouthBendTribune.com

November 9, 2007

PONTIAC, Mich. (AP) -- A woman imprisoned for
murder in the 1984 slaying of a pregnant woman based on the testimony
of a bite-mark expert who was later discredited was convicted again
Tuesday in the killing.

Carol Ege, 51, formerly of Birmingham, Mich., was
found guilty of first-degree murder by an Oakland County Circuit Court
jury. She faces a mandatory term of life in prison without parole when
sentenced Nov. 28.

"It wasn't just a murder, it was an annihilation of
a human being," Assistant Prosecutor John Skrzynski told the jury.
Defense attorney Craig Daly argued there was no physical evidence
linking Ege to Cindy Thompson's death or placing her inside the house
where Thompson's body was found.

Ege had been granted a new trial by federal courts.
In 1994, Ege was sentenced to life in prison without parole after
being convicted in the death of Thompson, a 26-year-old Pontiac
resident pregnant with the child of Mark Davis, who was romantically
involved with both women.

Thompson was found bludgeoned and stabbed to death
at her apartment. Although no physical evidence tied her to the scene,
Ege -- then living in Florida -- was charged nine years later after
acquaintances said Ege was enraged by Thompson's pregnancy.

During the trial, forensic dentist Alan Warnick
testified a mark on Thompson's cheek was a bite mark that matched
Ege's teeth with a probability of 3.5 million to one. Two defense
witnesses disagreed, saying the mark was a stain caused by blood
settling after Thompson's death.

Thompson's body was too badly decomposed for
Warnick to examine the wound when it was exhumed nine years after her
death, so he based his testimony on autopsy photos. His testimony was
later shown to be unreliable in a number of cases.

Bite Mark or Bruise?

Carol Ege has
been serving a life-no-parole sentence in Michigan for the last decade
or so for a murder that occurred in 1984. In July 2005, a federal
judge granted her a conditional writ of habeas corpus and ordered that
she be released or tried again. She remains behind bars while the
State of Michigan appeals the writ.

In 1996, the
Michigan Court of Appeals reluctantly upheld her conviction for the
barbaric murder and disembowlment of the woman who was carrying her
lover’s child.

The Court of
Appeals began its opinion by summarizing the case thus:

This is a troubling case. The
crime is horrific. The initial investigation was deficient. Defendant
was not charged until nine years after the murder. There are others
who are logical suspects. No one saw defendant at the scene the
evening of the murder. No physical evidence links defendant to the
crime except testimony that a mark on the victim’s cheek is a bite
mark that is highly consistent with defendant’s dentition.

It is that bite mark and the
testimony at Ege’s trial that led the U.S. District Court to order the
new trial. Before looking at the trial however, it is important to
examine the facts of Cindy Thompson’s murder.

Thompson was seven months
pregnant when she was killed in her Pontiac, Michigan house around
February 21, 1984. The child she was carrying was fathered by Mark
Davis, the man with whom Ege had been living with for the past decade.

Thompson was last seen alive
between 8:45 p.m. and 9:15 p.m. on February 21. At Ege’s trial,
Thompson’s neighbor testified that she heard what she believed to be
Thompson’s car pull into her driveway, followed by a second car. That
second vehicle left a few minutes later.

At approximately 5 a.m. the next
day, Davis entered Thompson’s home and found a dreadful sight. His
lover had been bludgeoned and stabbed to death and was found awash in
blood, eviscerated, with her internal organs on the carpet next to
her.

Dried blood was found on the
bottom of the stairs as well as a clump of hair and more blood further
up the stairs. There was a large laceration starting from the middle
of her spine and going around to her right side. Pontiac Police
Department Sergeant Steven Sitar testified that the wound was very
extensive and was gaping open and that she had been disemboweled. He
said that there was blood everywhere.

There was a vanity table
overturned by the victim’s feet and a telephone which had been pulled
apart from the receiver. The walls inside the bedroom were also
splattered with blood. Officer Michael Story found a bloody towel in
the kitchen area.

There was no sign of forced
entry into the home, but the phone lines had been cut.

Despite the horrific crime, the
initial police investigation — by all accounts — was shoddy at best.
After failing to make any headway with their probe, the police filed
the case as open and unsolved in April 1984.

In 1992, after some tipsters
came forward with evidence incriminating Ege, the cold case squad
reopened the case and finally submitted the evidence to the Michigan
State Police Crime Lab.

At the time nothing linked Ege
to the crime — including the nearly decade old trace evidence. The
evidence showed fingerprints from Thompson and Davis, but not Ege. The
trace evidence also revealed hairs from Thompson and others, but
again, no evidence was found linking Ege to the crime scene.

Thompson’s body was exhumed a
year later because autopsy photos revealed a mark on her cheek that
could have been a bite mark. At the time of the autopsy, the
medical examiner put the mark down as livor mortis, or the process of
blood settling after death.

When the Oakland County Chief
Medical Examiner, Dr. Ljubisa Dragovic, reviewed Thompson’s autopsy
records, he found that several important features and findings within
the photographs were omitted from the report. The original report
mentioned the stab wounds caused by a sharp instrument but not the
injuries to the head and hands caused by a blunt instrument. After his
examination, he determined that Thompson had received sharp force
injuries to the chest and neck. One of the cuts to the neck also
severed the spinal cord. She also received blunt force injuries to her
face and head. These injuries were likely to have been caused by a
hammer.

During her trial, Ege’s experts
maintained that the spot on Thompson’s cheek was livor mortis and even
if it was a bite mark, the pattern left on the skin by the teeth of
the killer did not match Ege’s.

Ege was indicted and in December
1993, went to trial for the murder of Cindy Thompson. The prosecution
called friends of Davis, Ege and Thompson, many of whom told of Ege’s
hatred for Thompson. However, as witnesses, many were not the most
reliable — “At the time of the murder, most of the witnesses drank
heavily and used drugs,” the Michigan Court of Appeals stated.

One of the witnesses testified,
without corroboration, that she and Ege once went to Thompson’s house
and in the midst of destroying some of Thompson’s property Ege told
the witness that “Cindy was not going to have the baby. She didn’t
know how or why, and she didn’t want to get me involved, but that she
wasn’t going to have the baby.”

Thompson’s sister recounted an
event that occurred two months before the murder in which Thompson was
physically assaulted by Ege. Another witness who was aware of the
assault said that Ege had planned to cause Thompson to lose her baby
by pushing her down some stairs.

Still another witness — a guest
in Ege’s house — told the jury that Ege had repeatedly said that she
wanted Thompson killed and that she was planning to hire someone to do
the crime.

Timothy Apker, the ex-husband of
the Ege’s house guest, testified that Ege offered him $500 to kill
Thompson. On cross-examination, however, Apker admitted that he
strongly disliked Ege and that he could not remember if his ex-wife or
Ege was the person who tried to hire him.

Dr. Alan Warnick was permitted
to testify that a mark found in a photograph of the corpse was made by
a human bite, and the mark matched the petitioner’s tooth pattern. He
said that out of the 3.5 million people residing in the Detroit
metropolitan area, the defendant was the only one whose dentition
could match the individual who left the possible bite mark on the
victim’s cheek.

Warnick opined that the injury
was a bite mark. Warnick compared dental impressions of other suspects
and found that none of them could have made the bite mark. He also
checked Ege’s dentition and concluded that it was highly consistent
with the bite mark. Warnick opined that the mark was made by
defendant. On cross-examination, Warnick conceded that since the
victim was found lying on her left side, face down on her left cheek,
an oval mark, possibly a “pseudo bite mark,” could have been impressed
on her face.

It was Warnick’s testimony that
the federal court found to be unfairly prejudicial to Ege’s case.

Although the defense attempted to
rebut Dr. Warnick’s testimony with the testimony of other experts who
opined that the mark on the victim’s cheek was the result of livor
mortis and was not a bite mark at all, the defense experts were not
questioned about Dr. Warnick’s probability testimony.

In addition, Dr.
Warnick examined the victim’s corpse, which had been exhumed about
nine years after her murder, but the body was too decomposed to
examine the cheek tissues at that time. Dr. Warnick acknowledged that
his opinion was formed solely from carefully examining an autopsy
photograph of the victim, which had not been taken for the purpose of
a bite mark examination and that, therefore, his opinion was less
reliable that an opinion formed on the basis of a direct examination
of the body soon after death, or from a photograph taken expressly for
forensic dental purposes.

On July 22, 2005, the district court granted Carol
Ege's petition for a conditional writ of habeas corpus on grounds that
(1) admission of bite-mark evidence at Ege's state trial violated her
right under the Due Process Clause to a fair trial, and (2) the
performance of Ege's state trial counsel was unconstitutionally
deficient and caused her actual prejudice. The State appeals the
district court judgment on both grounds, and argues additionally that
Ege's habeas petition is time-barred under the one-year limitations
period of 28 U.S.C. § 2244(d)(1). For the following reasons, we
AFFIRM in part and REVERSE in part the judgment of the district court.

I

This is a troubling case. The crime is horrific.
The initial investigation was deficient. Defendant was not charged
until nine years after the murder. There are others who are logical
suspects. No one saw defendant at the scene the evening of the
murder. No physical evidence links defendant to the crime except
testimony that a mark on the victim's cheek is a bite mark that is
highly consistent with defendant's dentition.

People v. Ege, No. 173448, 1996 WL 33359075, at *1
n. 1 (Mich.Ct.App. Sept., 17, 1996). Such was the description of
Carol Ege's case by the Michigan Court of Appeals, which heard her
direct appeal following a jury trial and conviction for first-degree
murder for the killing of Cindy Thompson.

Ege and Thompson had both been romantically
involved with Mark Davis, whose child Thompson allegedly was carrying.
Davis testified that he found Thompson in her upstairs bedroom some
time before 5:00 a.m. on February 22, 1984, bludgeoned and stabbed to
death, her organs laying beside her. There was no sign of forced
entry at Thompson's home, and the back door was found unlocked. The
phone cords had been cut. Thompson was last seen alive on the
evening of February 21, sometime between 8:45 and 9:15 p.m. The
initial police investigation, concluded in April 1984, yielded no
definitive evidence. Eight years later, however, the investigation
was reopened as a result of persons coming forward with evidence
allegedly incriminating Ege. During the course of this reopened
investigation, in 1992-1993, evidence that had been collected at the
murder scene in February 1984 was submitted to the Michigan state
crime lab for the first time. None of the evidence submitted to the
crime lab connected Ege to the crime. The lab results yielded
fingerprints of Davis and Thompson and hairs of Thompson and others,
but no similar trace evidence connected to Ege. Thompson's body was
exhumed in 1993, apparently to investigate a mark on her left cheek
visible in photographs taken at the murder scene. The initial
autopsy report had concluded that the mark was livor mortis.1
Ege was tried for murder following the 1992-1993 investigation.

At trial, the prosecution attempted to show that
Ege was obsessed with Davis and was therefore furiously jealous of
Thompson and the child Thompson was carrying. The prosecution
presented witnesses who testified that Ege and Thompson had argued
several years prior to Thompson's death, when Ege entered Thompson's
house to destroy a watch case and T-shirts that Thompson had bought
for Davis. Further evidence was presented that Ege and Thompson
engaged in a physical struggle at Thompson's sister's house, when
Thompson was five months pregnant. Witnesses also testified that Ege
had attempted to hire two different men to kill Thompson, and that
about one week before Thompson's death, Ege had asked her roommate,
Carol Parker, to provide her with an alibi in exchange for free rent.
Finally, several witnesses testified that Ege had expressed to them
a desire to see Thompson killed. One witness testified that after
Thompson became pregnant, Ege said to her, “Cindy [Thompson] was not
going to have the baby; that she didn't know how or why, and she
didn't want to get me involved, but that she wasn't going to have the
baby.” Another witness testified that Ege told her “she could stomp
the baby out of her, slit her throat, rip her up in little pieces and
think nothing of it.” Yet another witness testified that Ege told
him she wanted Thompson “really hurt bad, either beat her up bad or
kill her.”

Ege denied virtually all of the allegations made by
prosecution witnesses, and much of their testimony was called into
serious question on cross-examination, either through impeachment or
showing of bias. The defense's theory of the case was that Ege could
not have been at the crime scene on the evening of the murder because
she was at home all evening, and that although there was perhaps some
evidence pointing to her, a more compelling circumstantial case could
in fact be made against several of the prosecution's witnesses,
including Davis. Davis admitted that he had been drinking most of
the day and night prior to Thompson's murder, and that by the time he
decided to go to Thompson's house on the morning of February 22, he
had consumed approximately five bottles of wine. Davis's presence at
Thompson's house coincided approximately with the time she died. His
alibi that he was drinking at a friend's house up until the time that
he found Thompson's body was largely undermined by the friend's
subsequent testimony that he and Davis were not in fact together that
night. Also on cross-examination, Davis testified that he never
believed that Ege had killed Thompson, and affirmed that Ege had in
fact been home all night.

The prosecution's expert witness, Dr. Alan Warnick,
opined that the mark found on Thompson's cheek, which the original
autopsy report had concluded was liver mortis, was actually a bite
mark. Dr. Warnick was unable to examine the actual injury, because
Thompson's body was too badly decomposed upon exhumation nine years
after the murder. Thus, Dr. Warnick relied on photographs of the
mark which had been taken at the time of the initial autopsy, in 1984.
Dr. Warnick compared dentitions of several suspects raised by the
defense and found that none of them could have made the bite mark.
He also checked Ege's dentition and concluded that it was highly
consistent with the bite mark. Dr. Warnick was asked by the
prosecution, “Let's say you have the Detroit Metropolitan Area, three,
three and a half million people. Would anybody else within that kind
of number match like she did?” He responded, “No, in my expert
opinion, nobody else would match up.” Ege's defense counsel did not
object to Dr. Warnick's testimony, but rather called two expert
witnesses in rebuttal. The first, a pathology professor at Wayne
State University, concluded that the mark on Thompson's cheek was
liver mortis, and not a bite mark. The second, a dentist and medical
doctor, provided similar testimony, and added that even if it were a
bite mark, the pattern did not align with Ege's dentition.

A jury found Ege guilty of first-degree murder.
On January 28, 1994 she was sentenced to life imprisonment without the
possibility of parole. Ege's direct appeal was rejected by the
Michigan Court of Appeals on September 17, 1997. Ege's conviction
became final on March 30, 1998, ninety days after the Michigan Supreme
Court denied her application for leave to appeal.

On July 28, 1999, almost sixteen months after her
conviction became final, Ege filed a motion for post-conviction relief
in Michigan circuit court. She argued that her due process right to
a fair trial was violated by the admission of Dr. Warnick's bite mark
testimony, both because the evidence itself was scientifically and
probabilistically unsound and because Dr. Warnick had a demonstrated
record of unreliability. Ege also raised an ineffective assistance
of counsel claim, on grounds that her trial attorney had failed to
object to the introduction of the bite mark evidence, as well as to
the introduction of evidence concerning Ege's prior sexual history.
The circuit court concluded on January 11, 2000, that Ege's due
process evidentiary challenge to the prosecution's bite mark evidence,
particularly the testimony concerning the mathematical probability of
an alternate random match, “lacked a proper foundation” and should
have been excluded had an objection been raised. However, the
circuit court denied relief because (a) trial counsel had failed to
object to the evidence, and (b) the opportunity to present evidence
challenging Dr. Warnick's methodology removed any prejudice resulting
from receipt of the inadmissible evidence. The court weighed the
improper evidence against the strength of the untainted evidence and
found that a new trial was not required. As to Ege's ineffective
assistance of counsel claim, the circuit court denied relief as well,
finding that trial counsel's performance was not substandard. The
circuit court denied a motion for reconsideration on February 15,
2000. The Michigan Court of Appeals denied Ege's appeal as to the
post-conviction motion on August 24, 2000, and the Michigan Supreme
Court did likewise on April 30, 2001.

On August 13, 2001, Ege presented in federal
district court the following claims in a petition for writ of habeas
corpus:

I. Petitioner was denied a fundamentally fair
trial in violation of due process of law through the admission of an
erroneous expert opinion that there was a “3.1 million to one chance”
that a bite mark on the victim's body was made by anyone other than
the petitioner, where this opinion was without scientific foundation
and where subsequent cases have shown this particular expert to be
completely unreliable with a series of demonstrably erroneous bite
mark identifications in capital cases.

II. Petitioner was denied the effective assistance
of trial counsel where counsel failed to object to a series of
obviously inadmissible and inflammatory prosecutorial questions posed
to the testifying defendant about her sexual history, and her history
of multiple abortions, and where counsel failed to demand a Davis-Frye
hearing as to expert testimony given by Dr. Warnick and denied the
effective assistance of appellate counsel where counsel, who
represented petitioner both at trial and on appeal, failed to raise
the issue of his own ineffectiveness at trial on appeal.

III. Petitioner's constitutional rights were
violated where she was confronted by the prosecution at trial with
questions regarding her sexual history and the fact that she had two
abortions.

The State moved to dismiss the habeas petition on
summary judgment, arguing that it was time-barred under the one-year
statute of limitations established by 28 U.S.C. § 2244(d)(1). The
district court denied the State's motion because it was satisfied that
“discovery of non-record facts relating to the reliability of the
state's witness did not occur and could not have occurred until after
the expiration of the habeas filing deadline, even as tolled by
[Ege's] state post-conviction motion.” D. Ct. Op., July 22, 2005, at
15 (quoting the court's June 4, 2002 opinion). In particular, the
district court found that it was “some time after April 1999” when
Ege's counsel was first made aware of a letter from the Wayne County
(Michigan) prosecutor's office concerning the unreliability of Dr.
Warnick as an expert witness in two previous murder trials. D. Ct.
Op., June 4, 2002, at 4. The letter indicated that “the Office of the
Wayne County Prosecuting Attorney will not approve warrants where the
main evidence as to the identity of a potential defendant is the
opinion of Dr. Warnick that he/she is the source of the bite marks.”
Only after receiving this letter, and researching Dr. Warnick's record
of testimony in other Michigan counties (including the one in which
Ege was tried, Oakland County), did Ege's counsel pursue her July 1999
state collateral appeal. Because this factual predicate for Ege's
claim could not have been discovered until April 1999, even “through
the exercise of due diligence,” the district court concluded that
Ege's section 2244(d)(1) clock only began to run as of April 1999.
The clock was then tolled after approximately four months, as of the
filing of her July 1999 petition for state collateral relief. See 28
U.S.C. § 2244(d)(2). As a result of this tolling, the district court
did not consider Ege's August 2001 habeas claim, filed approximately
four months after her avenues for state post-conviction relief had
been exhausted, to be time-barred under 28 U.S.C. § 2244(d)(1).

In a separate, subsequent opinion, the district
court reached the merits of Ege's habeas petition, concluding that
“the evidence, already found by the State trial judge to be improperly
admitted, had a substantial and injurious effect or influence in
determining the jury's verdict.” D. Ct. Op., July 22, 2005, at 36
(quoting Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123
L.Ed.2d 353 (1993)). The district judge further noted:

There can be no question that the bite mark
evidence together with Dr. Warnick's 3.5-million-to-one odds making
was powerful evidence against the petitioner. It also contradicted
her claim that other logical suspects committed the crime. The
evidence plainly was material in the sense of a crucial, critical
highly significant factor. There was evidence presented at the trial
that the petitioner harbored intense animosity against the victim and
expressed a desire to see her killed. That evidence was also
challenged and many of the witnesses who gave that testimony were
impeached. Some even were the logical suspects themselves, as the
State court of appeals observed. However, without the bite mark and
opinion testimony, the nature of the State's proofs would have been
altogether different and a weaker case necessarily would have resulted
with no physical evidence connecting the petitioner to the crime.
Dr. Warnick's evidence was unreliable and grossly misleading. The
evidence was so extremely unfair that its admission violates
fundamental concepts of justice.

Id. at 36-37 (internal citations and quotations
omitted).

The district court also granted Ege's ineffective
assistance of counsel claim, finding a “reasonable probability” that
“but for the defective performance [of counsel], which resulted in the
receipt of the bite mark evidence and the statistical probability
testimony, the result of the proceeding would have been different.”
Id. at 38 (citing Strickland v. Washington, 466 U.S. 668, 694, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984)). As to Ege's third claim and
those portions of her second claim relating to the admission of
evidence at trial of her prior sexual history, the district court
denied relief. Ege does not appeal these denials.

The State appeals the district court's July 22,
2005 ruling on the merits of counts I and II of Ege's habeas petition,
as well as the district court's June 4, 2002 ruling that Ege's state
post-conviction petition was not time-barred.

II

This Court reviews a district court's decision
regarding a writ of habeas corpus de novo. Wolfe v. Brigano, 232 F.3d
499, 501 (6th Cir.2000). Factual findings made by the district court
are reviewed for clear error unless the factual determinations are
made based on state court documents. Bugh v. Mitchell, 329 F.3d 496,
500 (6th Cir.2003). In such cases, the factual findings are reviewed
de novo. Id.

Under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas
relief unless the state court's adjudication of the claim either:

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based upon an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.

28 U.S.C. § 2254(d). Under the “unreasonable
application” prong of this section, “a federal habeas court may not
issue the writ simply because that court concludes in its independent
judgment that the state-court decision applied [a Supreme Court case]
incorrectly.” Price v. Vincent, 538 U.S. 634, 123 S.Ct. 1848, 155
L.Ed.2d 877 (2003). Rather, “[i]n order for a federal court to find
a state court's application ‘unreasonable,’ the state court's decision
must have been more than incorrect or erroneous[;][it] must have been
‘objectively unreasonable.’ ” Wiggins v. Smith, 539 U.S. 510, 520,
123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). As this Court has stated, “a
federal habeas court must ask whether the state court's application of
clearly established federal law was objectively reasonable. If the
federal court finds that, viewed objectively, the state court has
correctly identified the governing legal principle from the Supreme
Court's decisions but unreasonably applied that principle to the facts
of the prisoner's case, it may grant the writ.” Millender v. Adams,
376 F.3d 520, 523 (6th Cir.2004).

III

A. The Limitations Period under 28 U.S.C.
§ 2244(d)(1)

“A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1).
The limitation period runs “from the latest of” several possible
occurrences, including

(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for
seeking such review; ․ or

(D) the date on which the factual predicate of the
claim or claims presented could have been discovered through the
exercise of due diligence.

Id. (emphasis added). Furthermore, the one-year
limitation period is tolled for the “time during which a properly
filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending.” 28
U.S.C. § 2244(d)(2).

If the district court was correct that the factual
predicate-namely, that Dr. Warnick was a “sham” scientist-for Ege's
due process habeas claims could not have been discovered until “some
time after April 1999,” then the § 2241(d)(1) limitations period would
not begin to run from the date on which her conviction became final
(March 30, 1998), but rather from Ege's discovery of the letter in
April 1999. The limitations period would then have been tolled in
July 1999, approximately four months after it began to run, upon Ege's
proper filing of a claim for state post-conviction relief. Running
of the statute would have recommenced on April 30, 2001, when the
Michigan Supreme Court denied leave to appeal Ege's denial of
post-conviction relief. Ege's federal habeas petition was then filed
on August 13, 2001, approximately four months after this denial.
Thus, if the district court was correct in its factual finding, then
Ege's federal claims are not time-barred, because they were submitted
well within the one-year limitations period-four months initially,
plus four months after tolling had ended.

In support of the district court's factual finding,
Ege draws our attention to a letter, dated June 19, 1995, which was
signed by the Chief of Operations of the Wayne County Prosecutor's
Office.2
The letter concerns two cases in which Dr. Warnick provided expert
testimony regarding the identity of persons suspected of leaving bite
marks on murder victims. In noting that Dr. Warnick's testimony was
totally unreliable-in one case, because DNA evidence later excluded
the defendant as a possible suspect; in the other, because a second
expert undermined Warnick's probability determination-the Wayne County
Prosecutor's Office concluded that it “will not approve warrants where
the main evidence as to the identity of a potential defendant is the
opinion of Dr. Warnick that he/she is the source of the bite marks.”
Ege notes that while the letter dates from 1995, it was not a public
document, and thus she could not have known that Dr. Warnick had been
thrown into disrepute until her receipt of the letter in 1999. Ege
further argues that prior to April 1999 there existed no published or
unpublished Michigan appellate decisions relating to Dr. Warnick, and
thus the “fact that defense counsel learned of the [Wayne County]
letter at all can only be characterized as fortuitous.” 3
Appellee's Br. at 54-55. In fact, two other cases in which Dr.
Warnick's bite mark testimony was questioned were only published
around the same time that Ege's counsel received the letter. See
Amolsch v. Warnick, No. 203198, 1999 WL 33446484 (Mich.Ct.App. Apr.27,
1999); People v. Wright, No. 179564, 1999 WL 33446496 (Mich.Ct.App.
Apr.23, 1999).

The State's strongest argument in support of the
§ 2244(d)(1) time bar is that nothing in the Wayne County prosecutor's
letter provides a new factual basis for Ege's claim that Dr. Warnick's
3.5 million-to-one probability determination was clearly objectionable
at trial. The State argues that bite mark evidence, while admissible
in Michigan (unlike in some other states), is nevertheless
controversial. Accordingly, the State contends, Dr. Warnick's
testimony could easily have been flagged by Ege's counsel at trial,
and the “new” fact that Dr. Warnick was no longer being relied on by
other Michigan county prosecutors was irrelevant. See Souter v.
Jones, 395 F.3d 577, 587 (6th Cir.2005) (noting that evidence “merely
cumulative to the evidence already presented by the defense at trial”
cannot form the newly discovered factual predicate). This would
appear to jibe with the district court's finding, in assessing Ege's
ineffective assistance of counsel claim, that “[t]he flaw in Dr.
Warnick's statistical opinion should have been obvious and its
admissibility readily assailable.” D. Ct. Op., July 22, 2005, at 28.

We must analyze Ege's two habeas claims separately
with regard to the State's argument and the section 2244(d)(1) bar.
On the one hand, the strength of Ege's free-standing ineffective
assistance claim-that her counsel blundered in not objecting to Dr.
Warnick's bite mark evidence and that the state trial court's failure
to recognize the impact of this was an unreasonable application of
clearly established federal law-clearly does not rest on Ege's counsel
only having been made aware of the Wayne County letter in 1999. If
it “should have been obvious” to trial counsel to object to Dr.
Warnick's testimony, and trial counsel did not have the benefit of the
Wayne County letter, then so too should it have been obvious to Ege
(or to her appellate counsel) that she should promptly file for habeas
relief under Strickland. In other words, as styled by the district
court, it would seem that Ege's otherwise meritorious ineffective
assistance claim in no way rests on the April 1999 discovery of the
Wayne County prosecutor's letter. The letter, which only points to
the unreliability of Warnick, cannot logically constitute a “factual
predicate” for Ege's free-standing ineffective assistance claim. Her
ineffective assistance claim is therefore barred under 28 U.S.C.
2244(d)(1), and we reverse the district court as to this point.

On the other hand, the strength of Ege's due
process claim does not rest solely on her trial counsel's inadequate
performance. Rather, it rests on the adequacy of the physical
evidence presented against her at trial. While it should have been
obvious to Ege's trial attorney that the manner in which this physical
evidence was presented was objectionable (i.e., that Dr. Warnick's
probability determination was entirely without foundation), we cannot
say that it should have been similarly obvious to Ege that the
substance of the physical evidence-at least as presented by Dr.
Warnick-was complete bunk. Thus, it is reasonable to assume that Ege
did not fully appreciate the strength of her due process claim until
she found out, entirely fortuitously, that the man who provided
critical, physical trial testimony against her was now considered to
be a charlatan by a sister office of the very state prosecutors who
had chosen to put him on the witness stand. This is especially true
because Ege's due process claim was “hybrid” in nature-that is, Ege
identified both Dr. Warnick's probability determination in her
particular case, as well as his general record of unreliability, as
flaws denying her right to a fair trial.

Furthermore, the district court's conclusion that
the Wayne County letter provided the factual predicate for Ege's
claims, and thus tolled the running of section 2244(d)(1), was a
factual finding that this Court reviews for clear error. Bugh, 329
F.3d at 500. And while the district court's misapplication of
section 2244(d)(1) with respect to Ege's free-standing ineffective
assistance claim constitutes clear error, the same cannot be said for
Ege's due process claim. Ege could not be expected to know, in
advance, how strong or weak that claim might be.4
Prior to receipt of the Wayne County letter, she likely felt that she
did not have a basis for pursuing her due process claim, as she was
yet unaware of the extent to which Dr. Warnick's reputation had been
thrown into disrepute. It was therefore not clear error for the
district court to find that the Wayne County letter provided Ege with
the factual predicate for her due process habeas claim. Accordingly,
we agree with the district court that Ege's due process claim is not
time-barred by 28 U.S.C. § 2244(d)(1), and thus will consider it on
the merits.

B. Ege's Due Process Claim

Ege asserts she was deprived of her due process
right to a fair trial because of the trial court's improper admission
of Dr. Warnick's bite-mark testimony, which she claims was both
substantively and probabilistically unsound. Both parties, as well
as the district court, have correctly highlighted the critical portion
of Dr. Warnick's trial testimony:

Q: Now, Doctor, with regard to your testimony, you
indicated that it's highly consistent with the dentition of Defendant
Carol Ege; is that correct?

A: Yes.

Q: Okay. With regard to-let me ask you a question.
Let's say you have the Detroit Metropolitan Area, three, three and a
half million people. Would anybody else within that kind of number
match like she did?

A: No, in my expert opinion, nobody else would
match up.

Tr. Vol. VIII, at 42. Also critical is the
judgment of the state court which considered Ege's claims on
collateral review:

This Court agrees that the testimony regarding the
probability that the bite matched the defendant lacked a proper
foundation. Expert forensic testimony regarding identification of
the defendant based upon a statistical analysis requires a proper
foundation. To make a statistical evaluation it is necessary to know
the frequency of a particular characteristic in the population. The
probability of any combination of known characteristics is equal to
the product of the frequency of each. In this case there was no
evidence offered to support the expert's conclusion regarding the
probability that the defendant made the mark. In other words, the
expert did not testify that he had identified particular features of
the bite mark that had a known rate of occurrence. Neither did the
expert did [sic] testify that he had multiplied these values to reach
his conclusion.

People v. Ege, Oakland Circuit Case No.
93-125655-FC, January 11, 2000, at 5 (internal citation omitted)
(emphasis added). Thus, the state habeas court found it highly
problematic not that the prosecution had used Dr. Warnick to introduce
bite mark evidence in the first place, but that Warnick had tied his
observations to a statement about probabilities that was wholly
without foundation. We agree. The prosecution failed to lay any
foundation whatsoever, either for Dr. Warnick's connection of the bite
mark to Ege's dentition in general, or for Warnick's assertion that
the two were connected by a probability of 3.5 million to one.

But the state habeas court then ruled that any
possible prejudice that could have resulted from improper admission of
Dr. Warnick's testimony was negated by the fact that Ege had been
permitted to present her own experts in opposition to Dr. Warnick,
both of whom rejected Warnick's conclusion that the mark on Thompson's
cheek was a bite mark and not simply livor mortis. Id. at 6.
Furthermore, the state habeas court noted that

this was not a case where the guilt or innocence of
the defendant hinged on an unchallenged and suspect expert opinion.
Numerous independent witnesses testified to the efforts which the
defendant made to secure help in killing the victim, to the steps
which she took in one attempt to kill the victim, and to her
statements before the murder which accurately predicted the manner in
which the victim was ultimately murdered.

Id. at 10. Following Michigan Supreme Court
precedent, see People v. Mateo, 453 Mich. 203, 551 N.W.2d 891, 896
(1996), the state habeas court inquired into the nature of the
evidentiary error and “assesse[d] its effect in light of the weight
and strength of the untainted evidence.” The court concluded that
“[t]he untainted evidence in this case overwhelmingly pointed to the
guilt of [Ege].” People v. Ege, No. 93-125655-FC, at 6.

The lack of prejudice notwithstanding, the state
habeas court also ruled that Ege's claim was barred by Michigan's
contemporaneous objection rule, because her trial counsel failed to
object to admission of Dr. Warnick's testimony at any point in the
proceedings.

(1) The State Habeas Court's Application of
“Prejudice” under Chambers

Any review of habeas due process claims based on
improper admission of evidence must be cognizant of the Supreme
Court's mandate that “it is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions.”
Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385
(1991). Under this very deferential standard, due process is
violated, and thus habeas relief warranted, only if an evidentiary
ruling is “so egregious that it results in a denial of fundamental
fairness.” Bugh, 329 F.3d at 512 (6th Cir.2003). “Whether the
admission of prejudicial evidence constitutes a denial of fundamental
fairness turns upon whether the evidence is material in the sense of a
crucial, critical highly significant factor.” Brown v. O'Dea, 227
F.3d 642, 645 (6th Cir.2000).

These principles have their roots in the Supreme
Court decision of Chambers v. Mississippi, 410 U.S. 284, 302-03, 93
S.Ct. 1038, 35 L.Ed.2d 297 (1973), which held that trial errors cannot
“defeat the ends of justice” or otherwise deprive a defendant of her
right to a fair trial. In Chambers, the Court was looking at a state
trial court's improper exclusion of certain evidence that would
potentially have assisted the defendant, but its tenets are equally
applicable to situations involving a state trial court's improper
admission of certain evidence injurious to the defendant. The
ultimate question is therefore whether the state habeas court, in
finding that admission of Dr. Warnick's testimony was not prejudicial
to the ultimate outcome of Ege's case, unreasonably applied Chambers.5

In the instant case, hindsight assessment of the
impact of Dr. Warnick's testimony requires two intertwined assessments
of the evidence against Ege: the first, taken in the context of
defense counsel's rebuttal experts, and the second, taken in the
context of the prosecution's other evidence, all of which was only
circumstantial. As to the first assessment, the effectiveness of
Ege's rebuttal experts must be viewed in comparison to the substance
of the rebutted testimony. We agree with the district court that
“Dr. Warnick's opinion that the petitioner was the only person in the
entire Detroit metropolitan area who could have made the mark on the
corpse carried an aura of mathematical precision pointing
overwhelmingly to the statistical probability of guilt, when the
evidence deserved no such credence.” D. Ct. Op., July 22, 2005, at
35. Bite mark evidence may by its very nature be overly prejudicial
and unreliable,6
but it may nevertheless be admitted under Michigan evidence law, and
we do not question the Michigan courts' judgment with respect to
admission of the bite mark evidence standing alone. See People v.
Marsh, 177 Mich.App. 161, 441 N.W.2d 33 (1989). However, Dr.
Warnick's statement that among the 3.5 million residents of the
Detroit metropolitan area, Ege's teeth, and only Ege's teeth, could
have made the mark on Thompson's cheek, was without doubt highly
prejudicial. It strains credulity to think that a jury hearing Dr.
Warnick's testimony would not immediately place Ege at the scene of
Thompson's violent murder, if only her teeth, and not those of
3,499,999 other Detroit residents, were linked to a bite mark on
Thompson's cheek. Such “testimony expressing opinions or conclusions
in terms of statistical probabilities can make the uncertain seem all
but proven, and suggest, by quantification, satisfaction of the
requirement that guilt be established ‘beyond a reasonable doubt.’ ”
People v. Carlson, 267 N.W.2d 170, 176 (Minn.1978); see also
generally Lawrence H. Tribe, Trial by Mathematics, 84 Harv. L.Rev..
1329 (1971). Furthermore, the injurious effect of Dr. Warnick's
probability testimony was not in any way diffused by the experts put
on by Ege's counsel. Both of these experts opined that the mark on
Thompson's cheek was livor mortis, and not a bite mark, but neither
directly refuted Dr. Warnick's methods in coming to his 3.5
million-to-1 probability determination. Thus, even if a majority of
jurors did not believe Dr. Warnick's testimony that the mark was a
bite mark, the minority who did would have been inclined to think that
such a mark could only have come from Ege.

As to the second prejudice inquiry, we must assess
the relative influence of the prosecution's non-bite-mark evidence,
all of which was circumstantial and none of which placed Ege at the
scene of Thompson's murder. We recognize that presentation of
physical scene-of-the-crime evidence is not a necessary condition to
support a guilty verdict. Obviously, many cases are tried on
nonphysical circumstantial evidence alone, and in many cases this
circumstantial evidence overwhelmingly points toward the defendant's
guilt. And in this case, it is undeniable that some of the
circumstantial evidence against Ege-for example, one witness's
testimony that Ege told her “she could stomp the baby out of
[Thompson], slit her throat, rip her up in little pieces and think
nothing of it”-was strong on its face, even if the witness was later
significantly, if not completely, discredited on cross-examination.
This case differs from other circumstantial evidence cases, however,
in that it appears the prosecution was not willing to try Ege until it
had Dr. Warnick's bite mark testimony, indicating its desire to have
in hand the one piece of physical evidence potentially linking Ege to
the crime. After all, nothing in the record suggests that a single
one of the “compelling” circumstantial proofs offered by the
prosecution at trial in 1993 could not also have been offered nine
years earlier in 1984, far closer in time to when the murder was
actually committed. We are thus led to believe that while the State
may have had a good circumstantial case against Ege in 1984, it was
not until 1993, when the State finally obtained expert physical
evidence connecting Ege to the murder victim, that it felt comfortable
moving forward with Ege's prosecution. If the prosecution felt that
the bite mark evidence was so important, it does not take much of a
cognitive leap to believe that the jury viewed it as important as
well.

It is not unreasonable to conclude, therefore, that
this single piece of physical evidence substantially prejudiced the
outcome of Ege's trial, even in light of other circumstantial evidence
against her. Furthermore, any argument by the State that its
non-bite-mark evidence against Ege was “overwhelming” simply flies in
the face of the findings of its own State Court of Appeals, which
noted on direct review how “troubling” Ege's conviction was, and how
many other “logical suspects” still exist. See People v. Ege, No.
173448, 1996 WL 33359075, at *1 n. 1 (Mich.Ct.App. Sept. 17, 1996)
(noting also that while the volume of circumstantial evidence
concerning Ege's animosity towards Thompson was considerable, “[t]he
credibility of much of this evidence was called into question”).
This finding by a state court that Ege's conviction was “troubling” is
quite different from the situation in Brown, in which a state court
twice concluded that the evidence against the defendant was
“sufficient to justify his conviction,” and thus this Court held it
was not objectively unreasonable for the state court to have
determined that such evidence “did not rise to the level of a crucial
or critical factor in the jury's decision to convict.” 227 F.3d at
645.

In Ege's case, once the state habeas court had
concluded that the admission of Dr. Warnick's testimony was error, it
was objectively unreasonable, under the tenets espoused by the Supreme
Court in Chambers, for the state court to have concluded that this
testimony was not prejudicial. It seems clear to us that the
bite-mark evidence was a “crucial, critical highly significant
factor,” Brown, 227 F.3d at 645, in the jury's determination of Ege's
guilt.

Even though the state habeas court reached the
question of whether admission of Dr. Warnick's testimony unfairly
prejudiced her trial (concluding, unreasonably, that it did not), the
state court ruled that Ege's due process complaint could be disposed
of prior to reaching this question. Specifically, the state habeas
court ruled that because Ege's trial counsel had failed
contemporaneously to object to Dr. Warnick's testimony, any subsequent
federal habeas claims raising the evidentiary issue were barred under
of the doctrine of procedural default.

Ege does not dispute that Michigan's
contemporaneous objection rule is a valid state procedural rule. She
therefore must confront a hurdle inherent to our federalist system,
namely, that “a habeas petitioner who has failed to meet the State's
procedural requirements for presenting [her] federal claims has
deprived the state courts of an opportunity to address those claims in
the first instance.” Coleman v. Thompson, 501 U.S. 722, 732, 111
S.Ct. 2546, 115 L.Ed.2d 640 (1991). In such case, a habeas
petitioner is required “to demonstrate cause for [her] state-court
default of any federal claim, and prejudice therefrom, before the
federal habeas court will consider the merits of that claim.” Edwards
v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518
(2000) (emphasis added). Thus, in order to overcome the State's
procedural default defense, Ege must show both “cause” and “prejudice”
for her failure to comply with Michigan's contemporaneous objection
rule. The Supreme Court has acknowledged that “cause” may be
established through a showing of counsel's ineffectiveness in failing
properly to preserve a claim for review in state court. Id. “Not just
any deficiency in counsel's performance will do, however; the
assistance must have been so ineffective as to violate the Federal
Constitution”-in Ege's case, her Sixth Amendment right to a fair
trial. Id.

The district court correctly noted that as a
general rule, trial counsel's strategic decisions on how the trial is
to be conducted are afforded great deference. See Strickland, 466
U.S. at 689, 104 S.Ct. 2052 (holding that “a court must indulge a
strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance”); see also Wiggins v. Smith,
539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (declining
to articulate “specific guidelines” for trial counsel conduct, and
instead emphasizing that “the proper measure of attorney performance
remains simply reasonableness under prevailing professional norms.”)
Nevertheless, the district court was also correct that there must be
some limit to this deference:

In this case, it is difficult to conceive of a
reason for not objecting to the bite mark evidence and the statistical
opinion. As the state court of appeals observed in its opinion on
direct appeal, “[t]he defense's theory as presented in its opening
statement was that defendant could not have been at the crime scene on
the evening of the murder because as [sic] she was at the home all
evening,” and “[n]one of the evidence submitted to the crime lab
connected defendant to the crime.” Since the bite mark evidence was
the only physical evidence connecting the petitioner to the crime
scene at the time of the murder, challenging its admissibility likely
would have been a sound decision with no adverse consequence.
Although bite mark evidence had been used in other Michigan
prosecutions, Dr. Warnick never examined the bite wound himself, and
the use of a photograph of the wound to make the comparison appears to
be novel. Even if defense counsel could not have anticipated the
prosecutor's question soliciting the unsupported statistical evidence,
one might expect that lodging a contemporaneous objection and moving
to strike the evidence, or perhaps for a mistrial, would be standard
operating procedure for a competent defense lawyer. The flaw in Dr.
Warnick's statistical opinion should have been obvious and its
admissibility readily assailable․ The basis for objecting to this
damaging yet unsubstantiated opinion evidence should have been obvious
to defense counsel, and the failure to lodge the objection was
substandard performance under prevailing professional norms.

D. Ct. Op., July 22, 2005, at 27-31 (internal
citations omitted). We agree with the district court's resolution of
the matter. It is true that Strickland and Wiggins compel a federal
habeas court to give a wide berth to trial counsel's actions, and that
in most instances, an attorney's decision to put on counter-experts
rather than object directly to expert testimony is strategically
reasonable. But where, as in the instant case, physical evidence is
presented linking a defendant to the crime scene, and it is the only
physical evidence showing such a link, then defense counsel must
object to its admission if no proper foundation has been laid by the
presenter. Anything else is objectively unreasonable. Furthermore,
the fact that defense counsel chose to introduce counter-experts to
Warnick's testimony does not insulate counsel's performance. There
is no reason counsel could not simultaneously have objected to
Warnick's testimony and attempted to rebut it with experts of his own.

To establish sufficient prejudice to overcome
procedural default with an ineffective assistance of counsel claim, a
petitioner must show a “reasonable probability” that, but for her
counsel's errors, a different result likely would have occurred.
Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A petitioner does not
have to establish, however, that counsel's error “more likely than not
altered the outcome of the case.” Id. at 693, 104 S.Ct. 2052.
“Reasonable probability” under Strickland, then, is “a probability
sufficient to undermine confidence in the outcome.” Id. at 694, 104
S.Ct. 2052. Given our previous discussion of actual prejudice caused
by erroneous admission of Dr. Warnick's testimony, supra, we conclude
that the Strickland prejudice standard is met as well. Thus, Ege has
met both the nested cause and nested prejudice prongs required to use
an ineffective assistance of counsel claim as “cause” for her
procedural default.7
Ege's non-compliance with Michigan's procedural default rule may
therefore be excused.

C. Ege's Free-Standing Ineffective Assistance of
Counsel Claim

In order for a habeas petitioner to succeed on a
free-standing ineffective assistance of counsel claim, even if the
claim has been used in another guise as “cause” to excuse procedural
default, the petitioner must still demonstrate: (i) deficient
performance of counsel, and (ii) prejudice, meaning the deficient
performance deprived petitioner of a fair proceeding. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
If a petitioner can make this showing, and if the state court
nevertheless denies her relief, then this Court will consider the
state court's application of Strickland to have been “objectively
unreasonable,” and we will grant the writ. As discussed in Part
III.A of this opinion, however, we decline to review the merits of
Ege's free-standing ineffective assistance claim on habeas because we
believe this claim is time-barred under 28 U.S.C. § 2244(d)(1).

IV

For the reasons discussed above, this Court AFFIRMS
the district court's conditional grant of Petitioner Ege's writ of
habeas corpus as to her due process claim, but REVERSES as to her
freestanding claim of ineffective assistance of counsel. Our partial
reversal thus does nothing to upset the district court's July 22, 2005
order-namely, that Ege be released from custody unless the State of
Michigan brings her to trial again within seventy days, subject to the
exclusions from such period allowed by 18 U.S.C. § 3161.

*****

I agree with the majority's reversal of the
district court's grant of Ege's habeas petition based on her
ineffective assistance claim. However, because I believe that Ege's
claim was untimely, and that the admission of bite-mark evidence does
not constitute an unreasonable application of clearly established
Supreme Court precedent, I dissent from the majority's partial
affirmance of the district court's grant. The same reasons the court
uses to deny part of Ege's petition should defeat the remainder.

I

The majority correctly observes that the crucial
Wayne County prosecutor's office letter from Richard Padzieski, which
Ege alleges as a new factual predicate for her claims, does not, in
fact, constitute such a predicate with regard to Dr. Warnick's
probability testimony at trial. Maj. Op. at 372-73. As the state
and district courts observed in earlier proceedings, the
inadmissibility of the statistical evidence should have been obvious
at the time of trial, and the letter in question provides no new
evidentiary basis to renew a defaulted claim on that basis. The
majority is persuaded, however, that the very same letter provides a
new factual predicate for the notion that Dr. Warnick was a “sham”
scientist.

The majority believes that the district court's
conclusion that the Padzieski letter constitutes a new factual
predicate is a factual finding, which we review for clear error.
However, the authority cited for this proposition, Bugh, 329 F.3d at
500, simply states that factual findings of a habeas court are
reviewed for clear error, not that a “factual predicate” determination
under 28 U.S.C. § 2244(d)(1) is a question of fact. This court does
not appear to have decided whether this question is one of law or of
fact, but insofar as it requires the application of a statutory
standard, it appears to be, at the least, a mixed question of law and
fact that we review de novo. However, even were we to assume that,
under the appropriate standard of review, the letter constitutes a new
factual predicate on the specific question of Dr. Warnick's
competence, it cannot in any case serve to make timely the due process
claim on which the majority would affirm the grant of Ege's habeas
petition. If the letter constitutes a new factual predicate for a
claim based on the allegation that Dr. Warnick's identification
evidence was particularly unreliable, but not for a claim based on the
allegation that the probability evidence offered at trial should not
have been admitted, then it should at most allow Ege to proceed on a
petition based on the identification evidence, not the probability
evidence.

II

The majority's due process analysis, however, is
inextricably bound up with Ege's time-barred claims concerning the
probability evidence Dr. Warnick offered at trial. Indeed, the
majority specifically concedes that they “do not question the Michigan
courts' judgment with respect to admission of the bite mark evidence
standing alone,” Maj. Op. at 376 and yet the Padzieski letter could
only provide a new factual predicate for the proposition that the bite
mark identification evidence should not have been admitted. They
identify as the “critical portion” of Warnick's testimony his claim
that, in the Detroit metropolitan area of some 3.5 million people, no
one but Ege would match the supposed bite marks he had identified on
the victim, Maj. Op. at 374, and agree with the state post-conviction
court that the problem was not that the state used Warnick to
introduce bite-mark identification evidence, but that Warnick was
allowed to make this foundationless statement about probabilities.
Maj. Op. at 376-77. No matter how well-qualified the expert, Ege was
on notice at the time of trial that she should have objected to that
probability evidence, as the majority implies in its citations to
People v. Carlson, 267 N.W.2d 170 (Minn.1978) and Lawrence H. Tribe,
Trial by Mathematics, 84 Harv. L.Rev. 1329 (1971). Maj. Op. at 377.

The majority's analysis proceeds from these
premises, suggesting that although the identification evidence alone
might not have been especially prejudicial-countered as it was by the
testimony of a defense expert-its combination with the improper
probability testimony resulted in a denial of fundamental fairness in
Ege's trial. Whatever the reasonableness of this conclusion, if, as
the majority admits, the Padzieski letter does not provide a new
factual predicate for the claim that Warnick's probability evidence
should not have been admitted at trial, such a claim is time-barred,
and the majority's analysis is grounded in a claim that was not
properly before the district court, and not properly before us. The
majority appears to believe that because Ege's petition is a
self-termed “hybrid” claim encompassing both Warnick's probability
testimony and his identification testimony, the determination that the
letter provides a new factual predicate for questioning the due
process implications of the identification evidence allows the
district court, and us, to consider the due process implications of
the probability evidence itself as well.

Were it the case that the erroneous identification
evidence (a claim based on which the factual predicate of the
Padzieski letter might properly put before us), taken cumulatively
with the probability evidence, resulted in sufficient prejudice to
amount to a due process violation, this might be appropriate. The
situation here, however, is precisely the reverse: the majority's
argument is that the newly-predicated weakness of the identification
evidence makes stronger the (time-barred) case that the introduction
of the probability evidence constituted a due process violation.
Viewed in this light, the Padzieski letter is at best cumulative to
the evidence, presented at trial by the defense, that Warnick's
identification was inaccurate, and such cumulative evidence “cannot
form the newly discovered factual predicate” of 28 U.S.C.
§ 2244(d)(1). Souter v. Jones, 395 F.3d 577, 587 (6th Cir.2005).
The possibility that, as the majority suggests, before the discovery
of the Padzieski letter “Ege did not fully appreciate the strength of
her due process claim,” Maj. Op. at 373 (emphasis added), does not
appear to be a basis for allowing an otherwise time-barred claim.

In addition, the majority fails to take seriously
the limitations imposed on federal habeas review by the relevant AEDPA
provision, 28 U.S.C. § 2254(d), which (in relevant part) permits
habeas relief only where a state proceeding resulted in a decision
contrary to, or amounting to an unreasonable application of, clearly
established Supreme Court precedent. The majority notes that to
merit habeas relief “the state court's decision must have been more
than incorrect or erroneous,” but rather must have been “objectively
unreasonable.” Wiggins, 539 U.S. at 520, 123 S.Ct. 2527. However,
their analysis of whether the admission of Dr. Warnick's testimony was
substantially prejudicial largely turns this analysis on its head.

The majority observes that the state waited some
nine years, until it had obtained the bite-mark evidence, before
prosecuting Ege, despite the likelihood that the circumstantial case
against her had been available much earlier. Maj. Op. at 377. From
this fact, the majority divines that the prosecution must have felt
the bite-mark evidence to be particularly important to the case
against Ege, and in turn suggests that “[i]t is not unreasonable to
conclude, therefore, that this single piece of physical evidence
substantially prejudiced the outcome of Ege's trial.” Ibid. Whether
or not it is unreasonable to so conclude, the proper question in a
habeas proceeding is whether it was unreasonable for the state court
to reach the opposite conclusion. It is simply not enough for this
court to have a reasonable belief that there was substantial prejudice
here. See Williams v. Taylor, 529 U.S. 362, 365, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000).

Granted, the majority does assert that the state
court's conclusion that the testimony was not substantially
prejudicial was an objectively unreasonable application of “the tenets
espoused by the Supreme Court in Chambers,” basing this assertion on
its belief that “the bite-mark evidence was a ‘crucial, critical
highly significant factor’ ” in the jury's determination of guilt.
Maj. Op. at 378 (quoting Brown, 227 F.3d at 645). Again, however,
the majority makes no attempt to show why the state court's opposite
conclusion was unreasonable (rather than merely incorrect, if it even
was that). And, indeed, the majority's concession that at least some
of the circumstantial evidence was strong on its face points to the
conclusion that the state court's finding was not unreasonable. They
acknowledge the testimony of one witness that Ege had said “she could
stomp the baby out of [Thompson], slit her throat, rip her up in
little pieces and think nothing of it,” Maj. Op. at 377,1
to which we would add testimony that Ege sought to hire someone to
kill Thompson, that Ege had threatened and assaulted Thompson and
vandalized some of her possessions, and that she asked a friend to
provide a false alibi.

Furthermore, the majority's grounding of this
conclusion on the general tenets expressed in Chambers is at odds with
our precedent. In particular, we have observed on a number of
occasions that when a habeas claim is predicated on evidentiary
issues, relief depends on the existence of precedent establishing the
particular type of evidence at issue as violating the defendant's due
process rights. See, e.g., Maldonado v. Wilson, 416 F.3d 470, 477-78
(6th Cir.2005) (improper admission of voice-stress analysis evidence
not unreasonable under AEDPA standard where no Supreme Court precedent
established admission polygraph or similar evidence as a violation of
due process); Frazier v. Huffman, 343 F.3d 780, 790 (6th Cir.2003);
Bugh, 329 F.3d at 512-13. Without Supreme Court precedent
establishing the admission of bite-mark identification evidence as a
due process violation-and there is no suggestion here that any
exists-“[g]enerally, state-court evidentiary rulings cannot rise to
the level of due process violations unless they ‘offend[ ] some
principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.’ ” Seymour v. Walker, 224 F.3d
542, 552 (6th Cir.2000) (quoting Montana v. Egelhoff, 518 U.S. 37, 43,
116 S.Ct. 2013, 135 L.Ed.2d 361 (1996)). To the extent that we
determine whether a ruling offends such a deeply rooted tradition by
looking to historical practice, Medina v. California, 505 U.S. 437,
446, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), the record provides no
indication that, despite the recent disfavor it may have fallen into
in some jurisdictions, the admission of bite-mark identification
evidence is of such a character.

III

Because the claim arising from Dr. Warnick's
probability testimony is time-barred under 28 U.S.C. 2244(d)(1), and
because the state court proceedings did not result in an unreasonable
application of clearly established Supreme Court precedent under the
standards of AEDPA, I dissent from the court's partial affirmance of
the district court's grant of the writ of habeas corpus.

FOOTNOTES

1. Livor
mortis, also known as postmortem lividity, is a form of skin
discoloration caused by the settling of blood, often marking the
location where a body suffered some sort of blow or trauma.
Dorland's Illustrated Medical Dictionary 1060 (30th ed.2003).

2. Wayne
County, encompassing metropolitan Detroit, has the largest
prosecutor's office in the State of Michigan.

3. Ege's
appellate counsel admitted at oral argument that the Wayne County
letter had been leaked to Ege's then-counsel by a reporter.

4. Dr.
Warnick's expert testimony, which was later found to be in essence a
sham by a party on whose behalf the testimony was given, may be
analogized to cases where, for example, a DNA expert later admits to
lying numerous times regarding test results, or a key eyewitness later
admits to perjury in identifying a defendant. See Randy Hertz &
James S. Liebman, Federal Habeas Corpus Practice and Procedure § 5.2b
n. 45 (5th ed.2005). In such cases, the petitioner could not have
been reasonably expected to discover the misconduct during pretrial
discovery or trial. As a consequence, an otherwise untimely petition
may be deemed timely in the proper circumstances.

5. The
federal district court concluded that without the benefit Dr.
Warnick's statistical bite mark evidence, “the nature of the State's
proofs would have been altogether different and a weaker case
necessarily would have resulted with no physical evidence connecting
the petitioner to the crime.” D. Ct. Op., July 22, 2005, at 36.
The district court harbored “grave doubt” about whether the
evidentiary error had a “substantial and injurious effect or influence
in determining the jury's verdict,” id. at 36-37 (quoting O'Neal v.
McAninch, 513 U.S. 432, 445, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)),
and thus concluded that “the State court's conclusions to the contrary
were an unreasonable application of federal law established by the
Supreme Court in Brecht v. Abrahamson [507 U.S. 619, 113 S.Ct. 1710,
123 L.Ed.2d 353 (1993) ] and O'Neal v. McAninch.” Id. at 37. We
note that both Brecht and O'Neal were cases involving harmless-error
review of constitutional trial errors. Ege's case, in contrast,
involves non-constitutional trial errors, and thus Brecht and O'Neal
do not strike us as the proper baseline cases from which to conduct
deferential AEDPA review. One could argue that there is little
difference between a constitutional trial error-e.g., improper
admission of an involuntary confession, which implicates the Fifth
Amendment, see Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246,
113 L.Ed.2d 302 (1991)-and a non-constitutional trial error that
ultimately leads to a violation of defendant's constitutional right to
fair trial, but since the Supreme Court has apparently blessed this
distinction, we do not revisit it here.

6. The
potential danger of using bite mark evidence at trial has been
explained in a somewhat dated, though still valid, law review
article:Bite mark evidence is more persuasive on the ultimate issue of
guilt than other analogous forms of evidence. For example,
fingerprints tend to be circumstantial or associative; that is, they
rarely decide a case alone, but tend to link a defendant to the scene
of the crime or an object involved in the crime. By contrast, bite
marks, in the usual case, will be conclusive of the guilt issue: the
logical distance between the fact of biting and the ultimate issue of
guilt is short. Thus, admission of irrelevant bite mark evidence may
be particularly prejudicial to the defendant.Adrienne Hale, The
Admissibility of Bite Mark Evidence, 51 S. Cal. L.Rev. 309, 326
(1978).

7. We note
again that the use of an ineffective assistance of counsel claim to
excuse procedural default of another claim-here, Ege's due process
claim-is different from use of an ineffective assistance claim
standing alone. And while we hold that Ege's free-standing
ineffective assistance claim is barred by AEDPA's statute of
limitations, her due process claim is not similarly barred. See Part
III.A, supra. Because the due process claim survives, so too do any
arguments integral to the resolution of this claim, including, as
here, use of ineffectiveness of counsel to excuse procedural default.

1. The
majority's comment that this testimony was “significantly, if not
completely, discredited on the cross-examination,” ibid., is
irrelevant: a habeas court has “no license to redetermine credibility
of witnesses whose demeanor has been observed by the state trial
court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434,
103 S.Ct. 843, 74 L.Ed.2d 646 (1983).